The Insurrection Act – What Is This Rare Power Trump May Use in MN?

With conflict getting out of hand in Minnesota, the president is left with few options but the Insurrection Act – which, in fact, isn’t so much a single act as a collection of laws reaching all the way back to the founding. Despite their longstanding tenure, however, these rules have only been invoked 30 times, with the longest span between a deployment of troops under them being the current period of almost 33 years, since the 1992 riots in Los Angeles. The Founding Fathers were generally – and justifiably – distrustful of standing armies. Among other factors, however, the western Massachusetts revolt of Daniel Shays in 1786 demonstrated the weakness of the new central government established in 1781 by the Articles of Confederation. When that founding document – indeed, that federal government – was replaced by the Constitution in 1789, Congress was given the power to call up the Army and Navy of the United States and the “Militias of the several States” to be led by the president as commander in chief. But what if a revolt, an invasion, or a fight with Native Americans occurred while Congress wasn’t in session? Well, in 1792, the Second Congress temporarily delegated its authority to President George Washington under the First Militia Clause by passing a law for “calling forth the Militia,” which only allowed the president to act without Congress if a state’s legislature or governor requested help. It was two years later, in 1794, when George Washington first used those emergency powers – and became, so far, the only sitting president to lead troops in person – to put down the Whiskey Rebellion. But he also sought an order from the Supreme Court first to declare that local law enforcement could no longer uphold the law, and then deferred to the legislature when it was time to disband. The Third Congress replaced the Calling Forth Act the next year with the Militia Act of 1795. This made the president’s authority permanent rather than temporary and eliminated three checks on that power: the court order, the limits on out-of-state militias, and the time requirements for notifications for dispersal. The authority wouldn’t be used again until President Thomas Jefferson, who sought federal troops rather than state militias to fight Spanish border incursions and to intercept his former vice president, Aaron Burr. Burr was suspected of conspiring to start another uprising – though he was later acquitted of treason. Jefferson drafted a new version of the law himself, stating that “where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or for causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval forces of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.”

Longstanding but Rarely Used

Most uses of the Insurrection Act came during and shortly after the Civil War, but it wasn’t exactly rare in the earlier years of the Republic. Washington’s 1794 use was followed by that of his successor, John Adams, in 1799 to put down Fries’ Rebellion in Pennsylvania. Add in Jefferson’s use and restructuring of the laws, and that’s the first three presidents of the United States all using that authority at some point. President Andrew Jackson used these laws (more or less) thrice – in 1831, he used the Insurrection Act to end Nat Turner’s Rebellion, a slave revolt. He used related legislation against South Carolina’s nullification of federal tariffs in 1832, and he deployed troops to help Maryland authorities during riots by Irish immigrant workers, though he didn’t formally issue the required proclamation to make it official. Abraham Lincoln invoked the Insurrection Act on April 15, 1861, to call up 75,000 state militia troops for the Civil War. Then, from 1871 through 1894, four different presidents used it on 12 separate occasions. It was during this period that the Ku Klux Klan Act of 1871 was added to the mix, significantly expanding presidential power in order to fight white supremacy during the Reconstruction era. The Insurrection Act went back to rarely being used over the following years, though never fading completely into obscurity. Woodrow Wilson used it to quell labor unrest during World War I in 1914, and again in 1921 for yet another labor dispute, this time by West Virginia coal miners. President Herbert Hoover ordered the US Army to violently clear out the “Bonus Army” of WWI veterans from DC, though he never issued an official proclamation to justify it. Franklin Roosevelt invoked the Insurrection Act to put down the two-day Detroit Race Riot in 1943, leading into the second most commonly used reason and time period. Between them, Dwight D. Eisenhower, John F. Kennedy, and Lyndon B. Johnson federalized troops eight times during the civil rights movement. The last three times the Insurrection Act was invoked were by Ronald Reagan in 1987 and George H.W. Bush in 1989 and 1992. Reagan’s was over a prison riot. Bush’s first was to end violence and looting in the Virgin Islands following Hurricane Hugo, and his second – the last time it has been invoked so far – was in the infamous Los Angeles riots of 1992 after the police beating of Rodney King.

A Blast From the Past

Should Trump actually invoke the acts now, it will break the longest streak of not using it in the nation’s history. Legal scholars seem to disagree, however, on whether the current situation in Minnesota qualifies the president to deploy troops without a request from the state government. Under the current rules, as expressed by 10 US Code sections 252-255, the president can act without Congress or the state’s consent so long as one of several vague and, in some cases, arguably subjective conditions is met. Would it be a legitimate use of the law in this case? Ultimately, that’s for the courts to decide – however it goes, though, neither the president’s supporters nor his detractors are likely to be swayed.  

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Liberty Vault: The Constitution of the United States